Judge tosses out impaired-driving charge after Chatham police force instructs accused to take her brassiere off.
Before Chatham police sat Jessica Chater down for a breathalyzer last year, they forced her to remove her bra.
Other police departments in the province said the action is virtually “unheard of” without a specific reason, like self-harm.
The Chatham-Kent deputy chief, however, said his officers “always” order a bra removed when an accused is placed in cells, despite an Ontario Superior Court decision from 2013 rejecting bra seizure as a blanket policy.
“They were monsters and the whole thing is a nightmare,” Chater, 34, told the Star Friday.
This week Justice Lucy Glenn dismissed the impaired-driving charge against Chater on the basis of several Charter violations. The arresting officer failed to ensure the accused understood her rights after rattling them off as a “puzzling piece of legal jargon,” said the Ontario Court of Justice judge.
Chater had been taken into the station after a breath test during a traffic stop along the town’s main artery on the night of March 7, 2015.
A female sergeant ordered her to remove her bra and then put her top back on, said her lawyer Brian Ducharme. Chater was placed briefly in cells then turned her over to a male police officer for breath testing “without her intimate apparel,” Ducharme said.
Chatham-Kent deputy chief Jeff Littlewood said his officers routinely order women who are detained in a cell, even temporarily, to take off their bras.
“The bra is always removed if she is being lodged,” Littlewood told the Chatham Daily News, noting it could in theory be used for self-strangulation.
However, Scott Rome, head of the Ontario Provincial Police breath program, said bra removal is far from routine.
“I can’t think of anything that would (prompt it) . . . unless there were a risk to the officer’s safety or something like that.”
Criminal lawyer Leora Shemesh called the practice “invasive” and a violation of Charter protections against unreasonable search and seizure.
“I don’t understand it. It’s the dumbest thing ever,” she said. “At what point are we drawing the line? Tights are more dangerous as ligatures than a bra. Are we going to have everyone naked in a cell?”
Shemesh successfully appealed a similar case several years ago where police forced a woman charged with drunk driving to remove her bra before a breathalyzer.
Until three years ago, it was an “unwritten policy” in at least one York Regional Police district to order underwire bras removed to prevent self-harm, harm to an officer or scratching the cells, noted Ontario Superior Court judge Michelle Fuerst.
Strip searches — which bra removal amounts to — can be carried out by police on a case-by-case basis, Fuerst wrote. A “policy” applied “without exception,” however, equates to “routine strip searches of female detainees, in contravention of Section 8 of the Charter,” she stated in a 2013 decision.
Since then, York police have imposed “strict guidelines” about bra removal. Officers now must receive authorization from a supervisor before ordering removal of any clothing, said spokesperson Const. Andy Pattenden.
Accessories like belts or ties are often confiscated in detention for safety reasons, but “unless she’s got suicidal tendencies, we wouldn’t take off a bra,” said Toronto police spokesperson Const. Jenifferjit Sidhu.
Staff Sgt. Ian Borden at the OPP policy unit said bra removal is “not just something blanket; that’s a case-by-case sort of thing. You don’t automatically strip search everybody who goes into your cells.”
Women in minimum- or medium-security prisons are permitted no fewer than 10 underwire bars, a Corrections Canada spokesperson said.